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Challenge to voter ID law is case of contradictions

By Eric Boehm | PA Independent

HARRISBURG — As Pennsylvania’s new voter ID law goes before the state Supreme Court, the case is a study in contradictions.

The eight plaintiffs — who are seeking an injunction to prevent the law from taking effect before the Nov. 6 election because thousands of Pennsylvanians couldn’t obtain the necessary identification in time — possess the required photo identification or other documentation the new law requires to vote.

Before voting in Pennsylvania this year, residents must show a photo ID, unless the state Supreme Court strikes down the new law.

No matter, say their attorneys, because the law could still disenfranchise about 100,000 other Pennsylvanians who do not have those credentials.

“The vice is not in requiring photo identification, the vice is in requiring photo identification that not everyone has or has the ability to obtain,” David Gersch, a plaintiff for the challengers, told the Supreme Court during oral arguments on Thursday in Philadelphia.

Meanwhile, attorneys for the state — who are defending a law aimed at preventing voter fraud — have said they cannot provide any examples of in-person voter fraud occurring in Pennsylvania.

No matter, they say, because the law is within the constitutional authority of the General Assembly.

While the right to vote is fundamental, voting cannot take place without state regulation, and fashioning that regulation is the legitimate role of the General Assembly, said John Knorr, representing the state Attorney General’s Office.

Now the state Supreme Court must sort out this mess.

The high court must decide if it will overturn the decision of Commonwealth Court Judge Robert Simpson, who upheld the voter ID law last month.

That ruling was appealed by the plaintiffs, who argue the new law — passed in March — did not give voters enough time to comply with burden of obtaining the necessary photo identification.

“There is too little time, and there are too many people affected,” Gersch said.

Voter ID laws in the United States: Green states require photo identification, blue and yellow states require various forms of non-photo identification, and grey states require no identification.

Justice Michael Eakin said the new requirement for voting would always pose a burden to voters, regardless of the time.

Eakin also dismissed plaintiffs’ argument that there is no evidence of voter fraud.

“There was fraud in the time of George Washington, and there will be fraud 200 years from now,” he said.

But Justice Debra Todd said the process of implementing the new law was a key part of evaluating whether the Legislature overstepped its authority in passing the voter ID requirement.

“How much better could we do if we had two years” to implement the law and inform voters, instead of a few months? she asked, challenging the attorneys for the state. “What’s the rush?”

Knorr responded that the election process would be more sound with the new rules in place.

“This system is better than the one that we had before,” he said, adding that the plaintiffs had not provided any actual evidence of any individuals who couldn’t obtain the necessary identification before Election Day.

With the court evenly divided between three Republican justices and three Democratic justices, there is a possibility of a party-line decision and a 3-3 deadlock on the court. Such a ruling would uphold the law, as a majority of the court is required to overturn a lower court ruling.

The court’s seventh member, Justice Joan Orie Melvin, a Republican, is suspended from the bench until her pending trial is resolved. She is charged with using legislative and judicial staff to assist her 2009 campaign for election to the court.

Bruce Ledewitz, a law professor at Duquesne University in Pittsburgh, said Thursday that a 3-3 split decision would be “the worst possible outcome,” because it would make the whole process look like a partisan political maneuver — though he noted the state Supreme Court has shown itself to be less partisan than other branches of government.

Either way, the election is only seven weeks away and the justices “will have to decide quickly, because not to decide is effectively a decision,” he said.

Contact Boehm at Eric@PAIndependent.com and follow @PAIndependent on Twitter.

Pennsylvania Independent is a public interest journalism project dedicated to promoting open, transparent, and accountable state government by reporting on the activities of agencies, bureaucracies, and politicians in the Commonwealth of Pennsylvania.